1.1. The present Terms of Sale and Delivery shall apply to all business relations of ROSTA MP (Shanghai) Co., Ltd. ("the Supplier") with other companies ("the Buyer/s"). The Supplier and the Buyer/s shall be jointly referred to as "the Parties”. In particular, the Supplier shall provide all services and supplies ("the services") to the Buyer exclusively on the basis of these General Terms of Sale and Delivery, whether expressly referring to them in a specific case or not.
1.2. At the latest by issuing its declaration of agreement with the Supplier, the Buyer irrevocably accepts these General Terms of Sale and Delivery. No General Terms of Business of the Buyer shall become part of the contract, irrespective of whether the Buyer refers to them and irrespective of the time of receipt of such Buyer's Terms at the Supplier. This especially also applies if the Supplier does not oppose any General Terms of Business of the Buyer or provides services unconditionally while being aware of Buyer's deviating, opposing or supplementing General Terms of Business.
2.1. All quotations of the Supplier are without obligation and subject to modification.
2.2. Any contracts with the Supplier shall not become effective unless confirmed in writing and, respectively, until written acceptance and acknowledgement of the order by the Supplier ("order acknowledgement").
2.3. Any deviations in the order acknowledgement, or the documents referred to in it, in relation to any prior declarations by the parties shall be considered as accepted if the Buyer does not contradict the deviation in question expressly and in writing, within a reasonable period of time, latest within seven days from the receipt of the order acknowledgement. The Buyer shall have no right to contradict the applicability and validity of the present General Terms of Sale and Delivery.
3.1. The subject of the delivery ("contract works", "good/s" or "product") shall be exclusively determinedy the indications in the order acknowledgement and the documents referred to in it.
3.2. If, on account of the production process involved, it is impossible to delimit in advance a certain output quantity for the contract works, the Supplier shall be entitled to make excess or short deliveries. Similarly, in the event of individual or special fabrications or small-scale series, the Buyer shall buy the actual output as contract works.
4.1. The Supplier shall retain the industrial property rights and copyrights with regard to all documents, especially illustrations, design drawings, drawings, calculations and templates / models ("the documents") and all pieces of information on these documents or made available to the Buyer in any other manner ("the information"). Even if a supply or service is based on the Buyer's specification or the Buyer contributes to it in any other manner, the rights of use shall be attributed fully and exclusively to the Supplier. The documents and information must not be passed on to any third party or put to any use beyond the concrete agreement without the prior express written consent of the Supplier.
4.2. Except where publicly known information or information that was rightfully obtained from third parties is concerned, the Buyer shall treat any of the Supplier's business information and know-how that has been disclosed to the Buyer or has otherwise come to his knowledge confidentially also after termination of the business relationship.
5.1. All prices quoted by the Supplier are subject to the legal value-added tax. The price lists are intended for information only and are non-binding.
5.2. The Supplier’s prices are founded on the cost structure (consisting of the raw material, development, and production costs, wages and salaries, taxes, customs duties and other duties) at the time of order acknowledgement by the Supplier. If this cost structure changes by the time of the respective (partial) delivery by at least 10%, the price in question shall be adapted in accordance with the change in the cost structure.
5.3. After the buyer makes the prepayment, the contract shall be confirmed. Invoices issued by the Supplier shall be sent within one month after the delivery.
5.4. The Buyer shall not be entitled to withhold any payments due to the Supplier.
5.5. The Buyer shall not be entitled to offset any claims against sums due to the Supplier except if such claims have been legally ascertained or have been expressly accepted by the Supplier in writing.
6.1. The Supplier shall deliver the supplies ex works (EXW in accordance with Incoterms 2000), excluding packing and loading.
6.2. Delivery periods and deadlines expressly guaranteed to the Buyer in writing shall be binding on the Supplier.
6.3. The Supplier shall have the right to make partial deliveries. Refusal to accept the contract works shall not relieve the Buyer of his payment obligation.
6.4. If delivery is delayed for reasons beyond the Supplier's control -in particular, force majeure, measures of authorities, confiscation, natural disasters, unrest or war, transport disruptions, operational disruptions, work conflicts, missing or late delivery from sub-suppliers not performing their contractual obligations，the delivery period shall be extended (and/or the delivery deadlines shall be postponed) accordingly.
7.1. The warranty period shall be 12 months from the receipt of the goods.
7.2. Certain properties, features and possible uses of the contract works shall only be considered as having been warranted if represented expressly and in writing. In particular, the Supplier does not provide any warranty for any abilities and possible uses not expressly represented in writing. In addition, any warranty shall be excluded for any deficiencies attributable to material made available by the Buyer for manufacture of the contract works or instructions given by him. Warranties and representations of the Supplier, especially regarding properties, shall not be considered as guarantees, except if otherwise agreed expressly in writing.
7.3. If the Supplier has to perform a warranty, he shall, at first, at his option, either repair or replace the good concerned within reasonable time. Replaced objects shall become the Supplier’s property and shall be returned to him. If the Supplier fails to repair or replace the object in question or refuses to do so or if the object cannot be repaired and replaced, or if this entails considerable inconveniences for the Buyer or cannot be demanded of him due to cogent reasons related to the person of the Supplier, the Buyer may, at his option, request a reduction of the price, or, if the deficiency is not just a minor one, cancellation of the contract. In the event of contracts permitting partial deliveries, the right of cancellation is limited to the partial deliveries not yet performed properly. The Buyer shall relinquish the right of cancellation by selling, changing or processing the good while aware of its deficiency.
8.1. Notice of any defects of the contract works and the non-conformance of the delivered quantity shall be given expressly and in writing by the Buyer to the Seller within a reasonable period, in the event of obvious defects or non-conformance of quantity within three days maximum from the receipt of the goods, and in the event of hidden defects, latest within seven days from detection. In the event of partial and successive deliveries, any defects or non-conformance of quantity in individual deliveries have to be notified separately. The notice of defects or non-conformance of quantity shall be considered as being too late if the Supplier can no longer verify the rejected good due to Buyer’s reason. From the time of detection of the defects or non-conformance of quantity, any sale, treatment or processing of the good is forbidden without the Supplier's prior express written consent, otherwise all claims shall be voided.
8.2. The Buyer shall ensure that the notice of defects or non-conformance of quantity is actually served upon the Supplier and shall bear the onus of proof. Merely returning the goods shall not be considered as notice of defects or non-conformance of quantity.
8.3. The assertion of any claims for warranty, damages for the defect or non-conformance of quantity themselves and based on an error as to the goods being free from defects or non-conformance of quantity is excluded if such notices are not submitted in due time.
8.4. If the Buyer does not return the parts concerned by the notice of defects or non-conformance of quantity to the Supplier at his own cost and risk, the Supplier shall be given the opportunity to verify the alleged defects or non-conformance of quantity on site. Neither the verification of the good nor the unconditional acceptance of returned goods shall constitute a waiver by the Supplier to object to the notice of defects or non-conformance of quantity being made too late or not made at all. The Buyer shall cooperate in the verification and removal of defects or non-conformance of quantity to the extent such cooperation can be reasonably expected from him and shall especially provide information. If after verification the Supplier does not accept the defects or non-conformance of quantity notified, the Buyer shall indemnify the Supplier for all costs connected with the verification.
The Supplier's liability shall be limited to cases of intentional or grossly negligent actions. The onus of proof of Supplier's gross negligence shall rest with the Buyer. The Supplier shall not be liable for any consequential damage, financial losses, especially loss of profit, and damage from third-party claims against the Buyer. The limitation of liability shall not be applicable to personal injuries.
The Supplier shall retain ownership of the contract works until the purchase price has been paid in full. In the event of a default in payment by the Buyer, the Supplier shall have the right to request that the contract works be returned and to terminate the contract. The request that the contract works be returned shall only be deemed termination of the contract if the Supplier expressly states this in writing.
11.1. If the Buyer fails to fulfil certain essential obligations resulting from the Contract– especially, payment of the purchase price, or default in fulfilling the cooperative actions required from the Buyer to enable the Supplier to perform the contract -the Supplier shall be entitled to terminate the contract upon expiry of a reasonable grace period (in any case, not exceeding two weeks time) for the Buyer's performance. In case of delayed payment, Buyer shall pay [one] per cent of the delayed amount for each delayed day as compensation. In case such delay is more than two weeks, Supplier may, at its discretion, (1) suspend any delivery; (2) terminate the contract; and/or (3) require Buyer to provide a warranty to Supplier’s satisfaction.
11.2. If after concluding the contract it becomes evident that the payment claim of the Supplier is jeopardized because the Buyer lacks the appropriate means of performance, especially due to his poor financial situation, the Supplier may refuse to carry out the service and fix a reasonable time limit for the Buyer to perform against concurrent delivery or to provide securities. If the Buyer declines this or the time limit expires without avail, the Supplier shall have the right to terminate the contract and claim damages.
11.3. The Supplier shall have the right to terminate the contract for good cause. Such good cause shall especially be bankruptcy proceedings, composition or other insolvency proceedings being opened against the Buyer's assets or not being opened due to a lack of sufficient assets to cover the costs.
12.1. The place of performance for both parties shall be Shanghai, China.
12.2. The exclusive legal venue for any disputes arising from or in connection with the contract, including its conclusion and validity, shall be settled by amicable negotiation. In case no settlement is reached, the disputes shall be submitted to the people’s court of Supplier’s domicile for judgement.
12.3. The contract shall be subject to the laws and regulations of PRC
12.4. If any of the clauses of the present General Terms of Sale and Delivery is ineffective, invalid or unenforceable, this shall not affect the effectiveness, validity or enforceability of the other clauses. In such a case the clause concerned shall be replaced by a clause that corresponds to the original economic result as closely as possible and is not ineffective, invalid or unenforceable.
This General Terms of Sale and Delivery is bilingual in both English and Chinese, and should there be any discrepancies between the two versions, the Chinese version shall be always prevailing.
All official notices concerning this General Terms of Sale and Delivery or order acknowledgement shall be delivered to the address listed in order acknowledgement or other documents. If the address is changed, the concerning Party shall notice the other Party in written in advance, or else the notice delivered to the original address shall be deemed as effective notice.
ROSTA MP (Shanghai) Co. Ltd.